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Move would make courts more accessible to those who can’t afford lawyers

The Law Society of B.C. is proposing a sweeping change that could dramatically change the way legal services are delivered in the province.

Photograph by: Mark van Manen
, Vancouver Sun files

The Law Society of B.C. is proposing a sweeping change that could dramatically change the way legal services are delivered in the province.

The society’s governing directors have unanimously approved a task force report that says the legal regulator should merge with the Society for Notaries Public of B.C. and expand the use of credentialed paralegals to lower costs for the public.

“The changes are going to help access to justice tremendously,” said Art Vertlieb, president of the law society.

“It’s the old analogy: If you go to the hospital, you don’t see the neurosurgeon right away. You see the triage nurse. Our challenge is to get our members to buy in.”

There are about 300 notaries in the province and nearly 11,000 lawyers, so the regulatory change is not a big deal.

But allowing paralegals to appear in B.C. courts under a system like Ontario’s would be a major step, and many lawyers may balk at the prospect of lower-priced competition.

While lawyers can charge hundreds of dollars an hour, paralegals work for a fraction of that because they have far less legal education and handle less serious work.

Paralegals have been involved in legal aid service delivery in B.C. since the mid-’70s for minor legal tasks and by legal aid to meet criminal and civil legal information needs.

They are used for poverty law services such as welfare rights, EI appeals or landlord-tenant disputes — areas where lawyers traditionally don’t practice or are too expensive to consult.

“To do a lot of legal work you don’t need eight years (post secondary education),” Vertlieb explained.

“Ontario’s model is basically a two-year community college course and they write a test. We may take that model or maybe there’s one between two years and eight years.”

In Ontario, paralegals are regulated, carry practice insurance and handle proceedings in small claims courts and Ontario courts of justice in matters under the Provincial Offences Act, Highway Traffic Act, in a summary conviction court under the Criminal Code, and before various tribunals handling landlord/tenant and workers’ benefits cases.

B.C. allows paralegals to do some tasks under the supervision of a lawyer and they can appear in Family Court on some issues as part of a pilot project.

But judges have been reluctant to embrace a system that would allow more non-lawyers appearing before them when they are already dealing with a huge increase in unrepresented litigants who can’t afford lawyers.

“Ontario had a long-standing tradition with paralegals going into court in that province … but B.C. has none of that tradition,” Vertlieb said.

In Ontario when they brought in their licensing regime, he added, they expected about 800 people to sign up to become paralegals — 3,000 arrived and there are some 5,600 now working seven years later.

“Think what that does to representation and access (to justice),” Vertlieb said.

In B.C., the near monopoly lawyers enjoy on providing legal services and the inefficiency and expense of the courts have meant the poor and the middle class can’t afford to defend or assert their rights, creating a serious justice deficit.

The crisis is not unique to the province, though, as most common-law jurisdictions are wrestling with similar concerns.

By way of counterpoint, in Denmark anyone is permitted to practise law, even for a fee, subject to certain exceptions with respect to appearances in the superior courts. Clients therefore have a choice — obtain legal services from a qualified, regulated and insured professional, or take their chances in a buyer-beware market.

In common-law jurisdictions, the U.K. has been leading the way in addressing these issues, with mixed results. Ontario has been on the forefront of change in Canada.

The Law Society of Upper Canada followed England’s lead in co-ordinating legal services provided by other professionals, not just lawyers, and introduced paralegals more than half a decade ago.

In a five-year review of the move, the society deemed the change “by any objective measure … a remarkable success.”

Washington state also recently created “limited licence legal practitioners” under the authority of the Washington state Supreme Court.

The Law Society of B.C. created a task force in the fall of 2012 to examine whether it should regulate all legal service providers, in particular paralegals.

Chaired by Bruce LeRose, a law society life bencher, it included Ken Walker, a law society vice-president, Godfrey Archbold, president of the Land Title Survey Authority, Satwinder Bains, an appointed bencher, John Eastwood, president of the Society of Notaries Public, Carmen Marolla, vice-president, B.C. Paralegal Association, Kerry Simmons, president of the Canadian Bar Association — B.C. Branch, and Wayne Robertson, executive director of the Law Foundation.

Their 41-page report was adopted by the benchers Friday.

“Access to justice is slipping out of reach for many British Columbians,” said LeRose. “It is critical that the law society look for ways to reverse that trend, and these ideas could be a big part of that.”

The task force said a method needed to be created to expand the scope and provide paralegals who have met prescribed standards with a certificate defining their function.

“The B.C. Paralegal Association is extremely pleased,” said Marolla, of the 700-member group.

“We look forward to continuing to work with the law society to develop the criteria for certification for paralegals and to consider how best to create the regulatory framework to be developed for stand-alone legal service providers.”

The task force recommendations could reduce some of the costs, eliminate the maze of multiple regulators that exists and end the hegemony of lawyers over legal services.

Still, it’s not clear a single regulator of legal service providers will improve access to justice.

The task force, however, believes economies of scale can be achieved, and that’s important.

“It is, simply put, more economically efficient to regulate legal service providers through one organization than it is to have to create multiple governance structures and regulatory bureaucracies, particularly when the same or similar services are being regulated,” the report said.

“Not only does this duplication risk the creation of differing standards, it costs more to the system as a whole and is therefore difficult to justify.”

Legal stakeholders will begin discussing the details of the societies’ merger and a regulatory framework by which other existing providers of legal services, or new stand-alone groups, can provide credentialed and regulated legal services in the public interest.

Together with post-secondary institutions, they also will develop a program of specific, prescribed education or training standards for certified paralegals.

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